closing argument

Posted by David Adelsteinon July 27, 2016Trial Perspectives /
Comments Off on Avoiding the Mistrial

If you prevailed at trial, there is nothing worse than a mistrial. Talking about taking the wind out of your sails. It happens. Unfortunately.

Boyles, Personal Representative vs. Dillard’s Inc., 41 Fla.L.Weekly D1709a (Fla. 1st DCA 2016), is a case where the defense prevailed, but on appeal, the court granted a mistrial for multiple (or cumulative) reasons, only two of which will be discussed below. Both reasons, however, could have been avoided.

A. Closing Argument

First, during closing argument, the defense counsel tried to attack the credibility of the plaintiff’s trial testimony by bringing up what the plaintiff testified to during her deposition. The problem, however, was that the defense brought up the plaintiff’s deposition when the deposition transcript was NOT introduced into evidence or apparently used to impeach the plaintiff during her trial testimony. The defense only brought this up during closing in order to insinuate that the plaintiff was not telling the truth based on deposition testimony that was NOT in the record. This is a huge no-no! The appellate court expressed:

[B]ecause the inadmissibility of appeal to non-record evidence during closing arguments is such a fundamental and longstanding canon of trial practice and ethics, codified in rule 4-3.4 of the Rules Regulating the Florida Bar, defense counsel’s violation, if not intentional, was at least grossly reckless, particularly because it was committed during closing arguments, when such improper statements are especially likely to inflame the minds and passions of the jurors so that their verdict reflects an emotional response . . . rather than the logical analysis of the evidence in light of the applicable law.

Boyles, supra (internal quotations omitted).

B. Voir Dire

Second, and another basis for a mistrial, during voir dire, the plaintiff read a standard jury instruction to the venire (jury pool) and essentially asked whether anyone would have a problem applying the law. The defense objected and the trial court precluded the plaintiff from asking a potential juror about the jury instruction. The appellate disagreed: “[D]enial to counsel of the opportunity to question prospective jurors on their ability to follow the law constitutes abuse of discretion and is grounds for a new trial.” Boyles, supra (internal quotations and citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Closing argument is a very, very important part of jury trials to sum up the evidence in the context / theme of your case based on the applicable law. It is your last opportunity to talk directly to the jury about the theme of your case. Check out this article for the purpose of closing argument.

While lawyers are afforded latitude in presenting closing argument, improper and prejudicial argument could result in an appellate court granting a new trial. The opposing party must, however, timely object to the improper and prejudicial argument in order to properly preserve this objectionfor appeal. This is typically done at the time of the prejudicial argument with the opposing counsel moving the trial judge to declare a mistrial. SeeR.J. Reynolds Tobacco Co. v. Gafney, 41 Fla.L.Weekly D744b (Fla. 4th DCA 2016) quoting Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1271 (Fla. 2006) (“If the issue of an opponent’s improper argument has been properly preserved by objection and motion for mistrial, the trial court should grant a new trial if the argument was ‘so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial.”). The standard of review on appeal for a motion for a mistrial or new trial based on improper closing is an abuse of discretion standard of review. Gafney, supra.

In Gafney, a wrongful death case against tobacco manufacturers, the plaintiff’s lawyers made improper comments to the jury asking the jury to “send a message” to the tobacco companies through their compensatory damage award in the verdict. The plaintiff’s lawyers also insinuated in closing argument that the defendant’s lawyers were involved in a conspiracy to cover-up the addictive nature of smoking cigarettes.

“Sending a Message” Closing Argument

The Fourth District held that “sending a message” argument is inappropriate when asking the jury to send a message with respect to compensatory damages (since this is the purpose of punitive damages and not compensatory damages):

“Send a message” arguments have been defined as those that ask a jury to “award money not based on the proof supporting the proper recoverable damages allowed in a wrongful death action, but to remedy wrongful, intentional, as opposed to negligent, conduct,” and those that “suggest[ ] to the jury that a significant verdict will send a message to stop [such] experiences from happening and will make others less likely to act irresponsibly.” The overwhelming weight of Florida jurisprudence informs us that “send a message” arguments are clearly inappropriate when utilized in a way that links the “sending of the message” to a compensatory damage award, and not to the entitlement to, or amount of, punitive damages.

***

Exhorting a jury with a “call to action” to use its verdict to “speak loud and speak clear” via a compensatory damage award, as was done repeatedly here, is improper. … However, today we clarify that even when both claims are at issue, a plaintiff may not utilize “send a message” and conscience of the community arguments when discussing whether the plaintiff should be compensated, due to the potential for the jury to punish through the compensatory award. Appellee’s counsel’s comments in this case served only to divert the jurors’ attention from the proper consideration.

Gafney, supra (internal citation omitted).

Ad Hominem Attack on Opposing Counsel

The Fourth District also held that closing argument that insinuated that defendant’s counsel was involved in a conspiracy was inappropriate. Closing argument is not intended to attack an opposing counsel for being part of an improper scheme:

There is no question that appellee’s counsel went outside the broad parameters of permissible closing argument when he turned his commentary on opposing counsel. These statements were totally irrelevant to the issue of appellants’ liability. The insinuation that appellants’ attorneys were engaged in a conspiracy with either the defendants or third parties to mislead, conceal, or manipulate as part of an on-going scheme did not merely push the envelope, but instead went wholly beyond the pale.

***

Accusations of wrongdoing by opposing counsel, such as those made in this case, would likely be improper even if made solely to a judge. Here, the comments achieved no other purpose than to discredit appellants’ attorneys in the eyes of the jury, planting in the juror’s minds the thought that the attorneys themselves were engaged in nefarious behind-the-scenes acts….

Gafney, supra.

In another example, you can check out this article for improper closing argument leading to a new trial in a trial against an insurance company.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

One of my favorite all-time shows is Law and Order. Jack McCoy can certainly deliver a closing argument like no other where the purpose of his closing argument always seems abundantly clear.

The purpose of closing argument is to help the jury understand the evidence presented to the law. See Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla. 2000). It serves as the final opportunity for the lawyer to fully connect his/her client’s theme of the case (possibly explained during opening) based on the evidence presented at trial and the applicable law. See id. at 1028 (“Attorneys should be afforded great latitude in presenting closing argument, but they must confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts and evidence.”) (internal quotation omitted); Jean v. State, 27 So.3d 784, 786 (Fla. 3d DCA 2010) (“Counsel should be permitted to present all legitimate argument [during closing]. In doing so, the trial court must afford counsel wide latitude in presenting the closing argument.”) (internal citations omitted).

The value of closing argument cannot be overstated. It allows the lawyer to summarize the evidence in the client’s favor while persuasively serving as an advocate for the client.

Instructions Before Closing Arguments: After all the evidence has been presented to you, I will instruct you in the law that you must follow. It is important that you remember these instructions to assist you in evaluating the final attorney presentations, which come next, and, later, during your deliberations, to help you correctly sort through the evidence to reach your decision. Closing Arguments: The attorneys will then have the opportunity to make their final presentations to you, which are called closing arguments.

There are, of course, things a lawyer should not do during closing argument such as personally vouch for the credibility of a witness or inject personal beliefs into the case. But there are indirect ways for a lawyer to go into the credibility of a witness or his/her theory of the case by focusing on that evidence supporting the theory and tying that evidence to applicable law.

If a party believes that the opposing party is giving an improper closing argument, it is imperative that they object. But, if they don’t object during closing argument, they must at least move for a new trial arguing that the opposing party’s argument constituted harmful or reversible error—that the unobjected to closing contained argument that is highly prejudicial and impaired fair consideration by the jury. See Murphy, 766 So.2d 1010 (explaining, however, that it is not improper to identify a witness as a liar or that he/she lied if supported by the evidence). Additionally, the party must establish that the unobjected to improper closing argument was incurable by a jury instruction (had it been timely objected to). See id. And, finally, the party must establish that the unobjected to, improper, harmful, and incurable closing argument damaged the fairness of the trial such that the public’s interest in the jury system requires a new trial. See id. Yes, this is a very difficult hurdle further supporting the importance of timely objecting to improper closing argument.

On the other hand, if a trial court gratuitously restricts an opposing party’s closing argument, such restriction could amount to an abuse of discretion. “[A]” trial court abuses its discretion when it fails to afford such latitude to defense [and plaintiff’s] counsel and, as a result, counsel is precluded from presenting his or her theory of the case to the jury.” See Jean, 27 So.3d at 786.

Ok, let’s get back to some more Jack McCoy:

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.